RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXXXXX	      CASE:  PD-2014-03124
BRANCH OF SERVICE:  Army                                                                    SEPARATION DATE:  20071026

Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E4, Construction Equipment Repair Specialist, medically separated for “low back strain,” with a disability rating of 10%.

CI CONTENTION:  The CI requests the board consider all conditions.  The CI’s complete submission is at Exhibit A.

SCOPE OF REVIEW:  The Board’s scope of review is defined in DoDI 6040.44.  It is limited to those conditions determined by the Physical Evaluation Board (PEB) to be unfitting for continued military service and when specifically requested by the CI, those conditions identified by the PEB, but determined to be not unfitting.  Any conditions outside the Board’s defined scope of review and any contention not requested in this application may remain eligible for future consideration by the Board for Correction of Military Records.  Furthermore, the Board’s authority is limited to assessing the fairness and accuracy of PEB rating determinations and recommending corrections, where appropriate.  The Board’s assessment of the PEB rating determinations is confined to review of medical records and all available evidence for application of the Veterans Affairs Schedule for Rating Disabilities (VASRD) standards to the unfitting medical condition at the time of separation.  The Board has neither the role nor the authority to compensate for post-separation progression or complications of service-connected conditions.  That role and authority is granted by Congress to the Department of Veterans Affairs, operating under a different set of laws.  The Board gives consideration to VA evidence, particularly within 12 months of separation, but only to the extent that it reasonably reflects the severity of the disability at the time of separation.  

RATING COMPARISON:  

SERVICE PEB - 20071010	VARD - 20080207	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Low Back Strain	5237	10%	Disc Disease L5-S1	5238-5243	20%	20071231	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  40%	

ANALYSIS SUMMARY:    

Lumbar Spine Condition.  The service treatment records (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM) documented an onset of back pain from a fall in May of 2006.  There was intermittent lower extremity radiation with sensory complaints.  Imaging (MRI) demonstrated degenerative disc disease (L5/S1 with “mild” left bulging and neural stenosis).  There were multiple neurological examinations confirming normal (5/5) bilateral lower extremity (BLE) strength and reflexes with none to the contrary; and, sensory examinations were normal except for one note of mild BLE deficits.  There were multiple STR entries documenting grossly normal range of motion (ROM), and none indicating significant limitation.  
There was intermittent documentation of a stooped posture, but more entries which noted a normal spinal contour; and, an antalgic gait was sometimes documented.  There was no STR documentation of incapacitating episodes.  Surgery was considered but deferred, and conservative treatment did not result in improvement sufficient to allow unrestricted duty.  The CI was referred for MEB, which in turn forwarded “mechanical low back pain, secondary to degenerative lumbar disc disease” to the Physical Evaluation Board (PEB).  

The NARSUM was conducted 20 September 2007, 1 month before separation, documented persistent pain with a complaint of BLE numbness.  The physical examination did not comment on gait or spinal contour, but recorded tenderness without spasm and “flexion to 45°, only, due to pain.”  The neurological findings were BLE strength of 5/5, normal reflexes, and impaired pinprick sensation in “both L5 distributions.”  Goniometric ROM measurements for the MEB by physical therapy (PT) were performed a day earlier and were flexion to 75 degrees (normal 90) and combined ROM of 170 degrees (normal 240).  

A VA Compensation and Pension (C&P) examination was conducted 31 December 2007, 2 months after separation, documented “severe” pain with BLE radiation (no subjective weakness or sensory complaints) “worsened with mobility, standing, sitting, bending.”  The examiner confirmed the absence of any incapacitating episodes.  The physical examination recorded an antalgic gait leaning forward on a cane, with guarding but no spasm.  Normal neurologic findings were detailed with 5/5 motor in all groups, normal sensation in all dermatomes, and normal reflexes.  Measured ROM was flexion to 85 degrees and extension of minus 10-15 degrees (normal 30), with a combined ROM of 165 degrees.  Electrodiagnostic testing by the VA a year after separation was normal.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB’s 10% rating under code 5237 (lumbar strain) was consistent with VASRD §4.71a criteria for the ROM evidence.  The VA’s rating under 5238-5243 (spinal stenosis rated as intervertebral disc syndrome) conceded the §4.71a 20% criterion of abnormal gait or spinal contour.  The only ROM evidence supporting a rating higher than 10% was the 45 degrees flexion in the NARSUM (ratable at 20%), but it was mitigated by a preponderance of contrary evidence and not compliant with VASRD §4.46 (accurate measurement).  Members considered, however, whether the 20% criterion of abnormal gait or spinal contour was reasonably conceded in this case.  The stooped posture and gait disturbance mentioned occasionally in the STR, and severely present apparent at the C&P examination (prohibiting full extension on ROM measurement), supported the criterion; but, members agreed that the C&P examination was arguably an outlier and the corroborating STR evidence was too inconsistent.  It was further noted that the requisite “muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour” as specified by §4.71a was not well established.  Spasm was not noted by the NARSUM or PT examiners, denied by the C&P examiner, and rarely present in STR clinical entries.  Members thus agreed that there was insufficient support for the 20% criterion.  

There was no evidence of incapacitating episodes for a higher rating under that formula.  Members considered whether additional Service rating could be recommended for the BLE radiculopathy.  The pain component of a radiculopathy is subsumed under the general spine rating as specified in §4.71a.  The intermittently documented sensory findings were not of any significant functional consequence, and there were no motor deficits in evidence.  Members thus agreed that additional rating on this basis was not justified.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board concluded that there was insufficient cause to recommend a change in the PEB adjudication of the lumbar spine condition.

BOARD FINDINGS:  In the matter of the lumbar spine condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  There were no other conditions within the Board’s scope of review for consideration.  The Board, therefore, recommends that there be no re-characterization of the CI’s disability and separation determination.  

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140624, with attachments
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

MEMORANDUM FOR Commander, US Army Physical Disability Agency
(AHRC-DO), 2900 Crystal Drive, Suite XXX, Arlington, VA 22202-3557

SUBJECT: Department of Defense Physical Disability Board of Review Recommendation
for XXXXXXXXXXXXXXXXXXXXXXX AR20160011115 (PD201403124)

I have reviewed the enclosed Department of Defense Physical Disability Board of
Review (DoD PDBR) recommendation and record of proceedings pertaining to the
subject individual. Under the authority of Title 10, United States Code, section 1554a,
I accept the Board's recommendation and hereby deny the individual's application.
This decision is final. The individual concerned, counsel (if any), and any Members of
Congress who have shown interest in this application have been notified of this decision
by mail.

BY ORDER OF THE SECRETARY OF THE ARMY:

Enclosure

CF:
( ) DoD PDBR
( ) DVA